The U.S. Supreme Court is poised to decide whether longstanding civil rights protections, known as "disparate impact," will continue to exist under the Fair Housing Act (FHA). Disparate impact allows courts to examine practices that cannot be justified despite disproportionately injuring families, individuals with disabilities, racial minorities and other protected groups. These protections have been around for 40 years and have proven essential to curbing discriminatory policies by state governments, banks and landlords. A remarkable consensus has emerged--among 11 federal appellate courts and the federal agency authorized to interpret and enforce the FHA--that these protections should continue.
Yet, members of the Supreme Court have called this settled law into question. During the January oral arguments, Chief Justice John Roberts essentially asked whether disparate impact protections were too malleable to be meaningful. Specifically, the Chief asked whether the FHA might put governmental entities in an untenable position when deciding where to locate scarce resources in the form of low-income housing units.
Roberts posed a conundrum: If a state official has an opportunity either to promote integration by subsidizing low-income housing in an affluent area or to build new housing to revitalize a low-income area, which should it choose to be compliant with the FHA?
The answer is straightforward: integration wins. The FHA was not passed to promote "separate but equal" as a second-best solution in housing policy; it was passed to end segregation. This means that low-income housing opportunities must be created outside of segregated neighborhoods to provide more options for segregated residents.
Roberts' question suggests disparate impact claims are illegitimate because they may be made by anyone: residents who want integrated housing options as well as residents who want their neighborhoods revitalized by more low-income housing development. But those facts aren't before the justices. In the case before the court, the plaintiff, Inclusive Communities Project, challenged Texas' practice of disproportionately locating tax-credit subsidies in minority neighborhoods, thus perpetuating residential racial segregation.
Although in theory, different types of litigants could bring a claim under the FHA. The real question is which claims would actually be successful and what direction is the law pointed. 40 years of FHA disparate impact case law on this subject demonstrates that the chief's hypothetical is neither realistic nor a basis for upending disparate impact protections.
First, tenants living in a segregated neighborhood do not have a right under the FHA to more segregated housing. Even if such tenants tried to bring this claim, they would have great difficulty showing they were injured by the government's decision to subsidize integrated housing choices. Indeed, the FHA is designed to expand housing choices, not limit them.
Moreover, the well-established case law illustrates that minority communities are much more likely to challenge housing revitalization efforts under the FHA (rather than demand them) because they frequently displace minority residents. But those claims are rarely successful: my examination of four decades of appellate case law demonstrates that displaced tenants have won only three of 14 appeals.
Second, housing developers, which are the likely plaintiffs in the chief justice's conjecture, do not have a right under the FHA to build more low-income housing in segregated places with heavy concentrations of such housing. For example, the U.S. Court of Appeals for the 5th Circuit has rejected just this sort of claim. The court there reasoned that most of the low-income housing in a Texas county was located precisely where the developer proposed to build more of it. Crucially, the 5th Circuit compared the developer's claim to the heartland disparate impact cases challenging the exclusion of all low-income housing and found that, "[i]f anything, racial minorities are already concentrated in [the locality and] additional low-income developments would further this trend." Artisan/American Corp. v. City of Alvin, 588 F.3d 291, 299 n.20 (2009). Courts have navigated and carefully analyzed the issues Justice Roberts raised and ruled for integration.
We have yet to achieve racial integration in housing: it was the focus of the Fair Housing Act of 1968, was a pillar of the civil rights movement, and remains paramount today. Revitalization of minority neighborhoods is also necessary, but it requires more than simply building more low-income housing there. Investments in infrastructure, transportation, employment, educational opportunities, public safety and, where appropriate, mitigation of hazardous environmental conditions, must be addressed before placing additional minority children in harm's way in the name of "revitalization."
To the extent the chief's questions give the other justices pause for thought, the answer should be simple: fair housing means integration.
Note: The author is a volunteer member of the board of the Inclusive Communities Project.